Sexting so common revenge porn perpetrators should not face 'stigma' of Sex Offender Register, says court

Those convicted of revenge porn should not automatically be placed on the Sex Offender Register because “sexting” is now so common it would “stigmatise” too many people, senior judges have said.

A court in Scotland found the “foolish” exchange of intimate images could mean large numbers find themselves on the register if new laws are interpreted too harshly.

In England and Wales people convicted of offences under the new revenge porn legislation are not automatically forced to sign the register but can face a maximum of two years in prison.

It is our impression, whether a wise practice or not, this [sexting] is now a relatively common feature of relationships between young peopleLord Turnbull

Judges made the ruling on Wednesday after accepting the appeal of a man who posted an explicit photograph of a woman he knew, which had been provided by her, on his Facebook page.

Having admitted the offence, which he claimed he committed when drunk, Adam Sutherland was given a community sentence but also ordered to sign the register by Kilmarnock Sheriff Court.

But the ruling was overturned when the Court of Criminal Appeal in Edinburgh decided the defendant had no “underlying sexual disorder or deviance” from which the public needed protecting.

Lord Turnbull said it was "important to ensure that individuals who receive such [intimate] images consensually do not find themselves subject to the grave stigma and onerous restrictions of registration on account of ill-judged, foolish or hurtful subsequent conduct”.

The court found Sutherland’s posting of the photograph did not amount to significant sexual behaviour.

The defendant, who was 23 at the time, met the victim, who was 20, through mutual friends and stayed in touch online for some months.

A fortnight before he posted the picture, Sutherland sent the woman a naked image of himself and in return she sent him an intimate photograph via the Snapchat, messaging site.

Although Snapchat messages are automatically deleted after a few seconds, Sutherland had taken a screenshot of the image.

He said he had no recollection of uploading it to Facebook.

Defence lawyer Ann Ogg said there was no suggestion that Sutherland had obtained the photo clandestinely and that a background report on him had identified no significant risks.

The Court of Criminal Appeal said these were important considerations in its decision to remove Sunderland from the Sex Offender Register.

“It is our impression, whether a wise practice or not, this [sexting] is now a relatively common feature of relationships between young people,” said Lord Turnbull.

"Whilst it is difficult to accept that was no sexual content at all to his behaviour, given the nature of the image concerned, we can see no basis for the view that any sexual aspect which might have been present indicated an underlying sexual disorder or deviance and we conclude that the sheriff was wrong in arriving at the view which he did,” the judgment read.

Laws specifically criminalising the sharing of sexually explicit images without a subject’s consent came into force in England two years ago this month, with more than 200 prosecutions taking place under the new legislation in the first 18 months.

However, data obtained from the Crown Prosecution Service last year indicated that 61 per cent of reported offences result in no action being taken against the alleged perpetrator.

Police say a lack of evidence or the victim withdrawing support for action are the main reasons for the small proportion of prosecutions.

The same data showed that some victims of revenge porn were as young as 11.